June 19, 2014

Reason for Hope? Blackhorse et al v Pro-Football, Inc. and the Future of a Racial Slur

C. Richard King is Professor of Ethnic Studies at Washington State University at Pullman and the author and editor of several books, including Team Spirits: The Native American Mascot Controversy and Unsettling America: Indianness in the Contemporary World.

On June 18, 2014, The U.S. Trademark and Patent Office Trademark Trial Appeal Board (TTAB) voided trademarks associated with Washington, DC NFL franchise, because it found the team’s name, Redskins, to be “disparaging.” The ruling, which followed precedent established by TTAB over the past two decades that had dismissed a range of trademark applications using the name, predictably was met with adulation by opponents and outrage by supporters. In fact, the decision lit up social media, spawning #newredskinnames, which dominated trending topics for much of the day. Focusing on the celebratory tones, raging resentment, and partisan politics palpable in immediate reactions, we might easily lose the larger import of the decision, while overlooking its limitations and dangers.

It is best not to think of the ruling as an end point. It rather moves the struggle to the next phase, fostering reconfigured dialogues and debate, while opening new fronts for action and reaction. Indeed, neither the name nor the brand will cease, and even if appeals uphold the decision, the franchise will retain rights, if more limited and less profitable. The organization said as much the same in its press release: “We’ve seen this story before. And just like last time, today’s ruling will have no effect at all on the team’s ownership of and right to use the Redskins name and logo” (emphasis original). This is certainly not the end. Nevertheless, the finding is a hopeful sign, or better said, another positive development for those opposed to the name. It adds to growing political pressure and the increasingly audible voices of dissent. In other words, the fight will continue with increased visibility and heightened momentum.

Much of the coverage, but happily not all, has centered on the ruling by TTAB and its propriety, the impact on and reaction of the franchise, and the minutiae of intellectual property law. The media has disappeared American Indians again, often burying, if not altogether erasing, them. Many readers will not learn the identities and actions of the five Native American plaintiffs, Amanda Blackhorse, Marcus Briggs-Cloud, Philip Gover, Jillian Pappan, and Courtney Tsotigh, who courageously brought the case to TTAB, nor will be given a fuller understanding of the long history of opposition to the team and its name, an opposition that dates back more than four decades and its in a larger pattern of empowerment. Indeed, as important as this ruling is, it is not the first time TTAB has taken up the question. In fact, it comes more than two decades after Suzan Harjo, Raymond D. Apodaca, Vine Deloria, Jr., Norbert S. Hill, Jr. Mateo Romero, William A. Means, and Manley A. Begay, Jr. filled suit against the NFL, seeking to nullify associated trademarks. Then, as now, TTAB ruled in favor of the plaintiffs.

The outcome of Blackhorse et al. v. Pro-Football, Inc. comes in the wake of efforts by indigenous peoples and their allies to change false and hurtful images at the local, state, and national level: changes at high schools and universities; the ban on such imagery by the National Collegiate Athletic Association because it creates hostile environment; state-wide bans (since diluted) on such symbols and practices in Oregon and Wisconsin; two decades of scholarship documenting the racist history and social and psychic trauma associated with such mascots, the use of social media to stage twitter storms and heighten public awareness; and the public denunciation of the name by sports writers, pundits, athletes, and politicians. The TTAB finding is significant, but not new; it is decades in the making. And while played out in mainstream contexts and the whitestream media, its energy and urgency comes from Indian Country.

In bringing Blackhorse et al. v. Pro-Football, Inc., the plaintiffs sought to make visible the history and significance of the name and the socio-economic complex that grew up around it. This meant, during the trial and in the court of public opinion, disrupting taken-for-granted precepts and practices, both the evolution and more contemporary manifestations of a racial slur, which like many denigrating words began as one thing and mutated over time, adapted to conquest, killing, and ultimately the creation of the United States. After the fact, those targeted became talismans, those hunted and hated, honored in some perverse twist of nostalgia and triumphalism.

Today, the spectacle of any given Sunday–branded sportswear, family gatherings, tailgating, face-painting, war whoops, “Hail to the Redskins,” fond memories, and the best of intentions allow fans to forget that history, simultaneously rejecting and re-enacting racism. In response to the ongoing protests and in the wake of the decision by TTAB, fans and the organization play Indian and play the victim; they speak of their hurt and pain; they defend their tradition. Indeed, they simultaneously speak for American Indians in the abstract and recover a victim slot. They are at once entitled to the power to name, endowed with claims on Indianness, and aggrieved and violated. Online comments, of course, will have expressed such sentiments with greater vitriol, unaware that the mix of rage and resentment, entitlement and erasure, reiterate the very forms of racism, privilege, and narcissism they purport to refuse.

Where the NFL, the franchise, and fans have sought to maintain the status quo, the plaintiffs in Blackhorse et al. v. Pro-Football, Inc., in common with Harjo et al. v. Pro-Football, Inc., sought to call attention to the slur and its history, gaining moral traction, disrupt the brand and its profitability, and reinforce the legal archive documenting anti-Indian racism. These two readings and their desired ends reveal two competing visions of race and racism: defenders of the name emphasize the intention behind the imagery and nomenclature, equate racism with prejudice and hate, and prefer to read the name as an isolated text; while critics highlight impacts and effects, understand racism to be a structural and historical phenomena, and insist on placing the name and associated practices in social and historical context. This deep division suggests that it will take more than a judicial ruling to affect real change around Native American mascots, alter public perceptions of Native Americans more generally, and fully humanize indigenous people.

For supporters, this is a hopeful moment. And without taking anything away from it, I think it important to note two things easily forgotten in the aftermath of Harjo et al. v. Pro-Football, Inc. First, on appeal, the courts reversed the decision issued by TTAB citing a lack of evidence and a lack of standing. Second, oppositional momentum stalled for a time. Both are possible here again. Dan Snyder, owner of the DC team has vowed to never change the name, and the organization has already indicated plans to appeal. While it may be best to never say never, a protracted legal battle likely lies ahead. Perhaps more important will be that battle’s reverberations in the court of public opinion. To phrase these reverberations as questions: How profound an impact might the ruling have on assessments of the team name and in turn how might this facilitate or complicate change? And, how will the ruling shape perceptions and conversations elsewhere? Will it push forward critical conversations and change around the Chicago Blackhawks, Kansas City Chiefs, or Atlanta Braves? While it will be some time before we have the answers, I remain hopeful.